Apr 28, 2011

James Arthur Ray Sweat Lodge Trial: Day 35

Getting Det. Diskin's direct testimony into the record is a game of inches.

In the balance between trial testimony and legal wrangling, the latter probably tipped the scale today. There were lengthy legal arguments during breaks and numerous sidebars, mostly about what Det. Diskin could and could not say and what exhibits could be admitted with his testimony.

The day started with over an hour of argument over what exhibits would and would not be allowed during Diskin's questioning, with the defense arguing that many of the evidence photos in question are prejudicial. In other words, they depict an accurate portrayal of James Ray. It could be inferred from some of them, according to Tom Kelly, that Ray is a flight risk. That's only because he fled almost immediately after the event, avoiding police questions and returning to his home in California. It might look suspicious to the jury that Ray left his wallet behind. But Sheila Polk explained that it would be made clear that he only left his wallet and other personal effects because his room was in the process of being searched and he could not enter it. So it's really only as peculiar as it would be for anyone to grab an early flight, and leave their wallet in anther state rather than wait to retrieve it.

Ultimately, Judge Darrow ruled that items like the wallet, that constitute indicia of occupency, were allowed in, for a narrow purpose, and with address information and the like removed.

Less successful for the prosecution were arguments to bring in evidence like Ray's script for Spiritual Warrior, and other writings about the events. The script, which had references to Hindu and other spiritual beliefs, Kelly wanted out because he didn't want Ray's religious beliefs to become an issue. (Remember. The Hamiltons' wacky spiritual beliefs are fair game. James Ray's Spiritual Warrior event was business seminar.)

Kelly also expressed his understanding that a listing of costs in the document was disallowed under a previous ruling. Polk disagreed, saying that Ray's high pressure sales tactics have been precluded; not his costs.

Polk also argued that the document was necessary for her to rebut the assertion that Ray "just showed up" and did the event, rather than playing the pivotal, guiding role. Kelly insisted that the defense has never implied that he "just showed up." But it was Kelly himself who insisted that the event was run by JRI and Ray was simply the talent who came in, led events, and left.

Judge Darrow was not comfortable with it as a foundational issue because it was not clear if it was a final document. Polk argued that the whole thing had been compared to the recordings of Ray's lectures and it was consistent. Oddly, though, the speech before the sweat lodge is missing from any document, except for the recorded statements, which they had to fight to get. The script for that speech has never turned up; not at Angel Valley and not in his offices in Carlsbad.

Judge Darrow declined to bring it in with Det. Diskin's testimony but left open the possibility that it may be admissible in a different context, later on.

Polk argued that a document entitled "The Dream" was an example of Ray's promise to participants that if they did every crazy, risky thing he wanted them to do, they would get what they wanted in life. Kelly insisted that "The Dream" was never even read at Spiritual Warrior because it was supposed to be read after the sweat lodge. So that seems like a fair argument against its inclusion.

A document explaining the rules to the Samurai Game was also excluded, but again, Judge Darrow left open the possibility that it might be admissible in another context.

Polk also argued that his agenda was germane and discussed that an appointment at Enchantment Spa scheduled for the day after the sweat lodge showed his false representation to participants. Witnesses have testified that he told them the sweat lodge would be a deep cleanse that left their skin baby soft. And yet, the very next day he planned to go to a Sedona restort to have lymphatic drainage and a facial.

Ultimately Judge Darrow ruled that while the various documents were outside the scope, photos showing where he stayed, the indicia of occupency, and a narrative describing his general movements after the sweat lodge would all be admitted.

The next issue Polk raised had to do with a witness named Dr. Kent. She explained that he attended Spiritual Warrior in 2008 and became immediately concerned over what he recognized as heat related illness. He feels that two participants probably would have died had he not attended to them. He expressed his grave concerns to the JRI staff.

Polk explained that he has been on the witness list since the middle of February, having contacted the State after he learned about the trial from the media. An email sent at the time of the incident was not received, so the State had been unaware of him or at least not aware that he was a doctor because he was on the attendee list as David Kent. After they learned of him and interviewed him, they fully disclosed him and their interview to the defense team, who apparently ignored it completely.

They were going to remove him from the witness list after Judge ruled against any more testimony of prior events coming in. But, in light of his statements about the lack of medical testimony to lay foundation for that prior incident testimony, they wanted to proceed with calling him as a witness.

Then Tom Kelly had a meltdown. You can always tell when Kelly thinks his argument is weak. It's when he gets the most strident about constitutional issues and the outrageousness of the prosecution's claims.

I have a hunch that Judge Darrow is leaning towards allowing Kent's testimony. I think he really wants to see that medical foundation laid. So, we shall see. Fingers crossed.

Det. Diskin Demonstrates Wood

Today Det. Diskin explained about sampling of items for testing. He explained that he was initially very concerned about toxins and collected many items for the lab work.

Polk asked him why he would not have seized the entire sweat lodge and brought it in as evidence. He explained that there was no way to move the structure in tact. The form is held in place by tension. Unearth the willow pegs and the whole thing collapses.

Polk asked him further if it would be common practice to seize an entire structure, like say a burned out house. He said it was not. This brought a request for a voir dire from Kelly, who questioned his credentials to make such a suggestion. Wasn't this Det. Diskin's first homicide? No. It was his first homicide as the case agent. Had he ever worked a case involving a burned out building? No.

Something tells me that Kelly did not request a voir dire because he so objected to the assertion that a burned out building would not be seized and moved by police. It was a fairly cheap attempt to impugn Diskin's credentials that, for some reason, could not wait for cross examination.

Det. Diskin also explained in his testimony that he had given the Hamiltons leave to destroy what was left of the sweat lodge in their memorial ceremony. They had even called the next day to reconfirm it.

Sweat Lodge Structure After Investigation and Sampling

So that was the skeleton of the sweat lodge as the police were completing their investigation. The funny little space alien looking guy in the background is a police officer in a Tyvek suit. Its a type of hazmat suit which police wore, in this case, because of their concern over toxic exposure.

In explaining what they chose to sample, Det. Diskin explained that they knew the structure itself had been used without incident by many other people and that the extreme nature of Ray's sweat lodges had led to problems for at least the previous three years. So the problem, he believed was specific not to the sweat lodge structure but to Mr. Ray. Needless to say, Kelly called for a sidebar.

After the sidebar, Polk clarified that his statements were based on his beliefs.

Then they moved the discussion to the wood samples. They both removed the cedar log from the evidence container. Drawing on his construction experience, Diskin confirmed that, yes, the nail Luis Li had pointed out to Amayra Hamilton was the type that is used to hold down plastic and paper. So, yes, it was for securing tarps over the stacks of wood.

They then opened up two more of the evidence logs and Diskin inspected them and showed them to the jury. Neither of those two logs contained nails.

The fourth log had to be brought up from evidence so it was examined later. That one did have a nail. So it would appear that Luis Li was half right when he shamelessly lied to Amayra Hamilton.

Det. Disken also discussed how soil samples were taken from inside and outside of the sweat lodge. Samples were also taken from the beverages and fruit at the comfort station. It was never tested because not everyone who had drinks and fruit got sick and there were people who got sick who had neither.

According to Det. Diskin there were bugs on the fruit and ants crawling under the table. He saw them when he was there taking evidence. He also blew the photos up on his computer and saw bugs. He did not mention if the fruit photos were in fact taken 24 hours later and I still consider that to be impossible.

Fruit With a Side of Insects

Det. Diskin explained some of the difficulties with getting things tested. Samples are sent to the Deptartment of Public Safety Crime Lab and it's that state run lab that makes the final determination about what merits testing. They consider the severity of the crime and the likelihood that they'll find anything of value.

There were a number of problems with Diskin's request that they check the blanket and tarp samples. Because plastics emit their own volatiles, it is difficult to determine what other volatiles may be present. Volatiles are chemicals that are released when something is heated. Some are toxic. Some are not.

Det. Diskin explained to the crime lab that people, including Ray, had described very high levels of heat inside the sweat lodge. He also explained the illness and death. He did not recommend specific toxins to check for because he didn't know what toxins would correlate with the symptoms experienced.

Ultimately, two of the excised sections from the tarps, two rocks, and two of the four wood samples were tested. The soil samples were not tested by the crime lab and were sent back. We will not know the results of that testing until someone from the crime lab to testify to the results.

Polk addressed, at length the organophosphate question with Det. Diskin, in order to explain why he had not pursued that particular line of inquiry. In short, it had never been suggested by any person or evidence until shortly before the trial began. Polk read the statement from the mysterious "EMT" that the defense has repeatedly relied on as evidence of the possibility.

At no point did anyone interviewed by the police department mention the possibility of organophosphates. At no point, in any meeting with the defense team did they ask him about organophosphates. The first mention he ever heard came from the defense's expert witness Dr. Paul, in an interview, weeks before the beginning of the trial. That was the first and only reference and it wasn't even to be found in the doctor's written report.

After that Det. Diskin scrambled to have things tested for organophosphates. None were found in the blood samples of Kirby Brown or James Shore. So much time had passed by then that testing wasn't very reliable. Testing Liz Neuman's sample promised even less because she had lived and been treated for a number of days before her passing. Soil samples were also tested but, again, too much time had passed for a reliable result. In any case, it all came back negative for organophosphates.

Det. Diskin also offered some background on how the information is shared between the State investigators and the medical examiners. He explained that unlike coroners, medical examiners don't have an investigation arm. All extrinsic investigation has to come from police investigators. He also described the meeting in which information was shared between these various state agencies with a PowerPoint presentation. Worthy of note, this is the meeting that caused the pretrial Brady violation finding against the prosecutors.

Defense Argues Over Burden of Proof and Mystery EMTs

Another lengthy episode of legal wrangling commenced over the break to discuss Diskin's organophospate testimony. They were very upset that it appeared that Polk was shifting the burden of proof to the defense by pointing out that they had never raised the issue. Polk explained that she had two cases on point which she turned over to Judge Darrow.

But her point in raising the issue in this way is that the defense has repeatedly insinuated that Det. Diskin didn't do a thorough investigation and ignored crucial areas of interest. Polk needs to be able to demonstrate why Det. Diskin did not investigate the mysterious organophosphates.

Kelly loves to point out that Dr. Lyon said he couldn't exclude organophosphates. I don't know if he doesn't really understand how medical determinations are made or he's being disingenuous. No doctor can completely rule out anything they haven't tested for, whether or not there's any reason to consider the possibility. Dr. Lyon couldn't exclude fairy dust, either, but I doubt that fairy dust killed or sickened anyone in Ray's sweat lodge.

Li also misrepresented medical testimony by saying that the State's medical experts won't say beyond reasonable doubt that heat killed these people. In fact, every one of them has said that they were satisfied to a medical degree of certainty about their findings. A medical degree of certainty is not one hundred percent certainty, but anything less than that seems to embolden the defense into claiming that the medical findings were wrong.

Li did some remarkable grandstanding about how the recording of the "EMT" is part of the state's evidence and it was their responsibility to find that evidence and hunt it down.

True. The State didn't spend hours combing through the background noise in all its recorded interviews and search for clues to causation. They just interviewed actual, known, paramedics, doctors, EMTs, and other witnessess with names and faces. So sloppy of them to have missed that one barely audible reference when they should have based their case on it. It's the State's burden to research all background noise and ignore people they know treated the victims.

In all seriousness, I've noticed a change in Li's demeanor since he argued successfully, if nonsensically, at the Brady hearing. He's gone from being whiny and servile to flourishes of incredible arrogance.

In the final episode of extended, largely pointless, legal argument at the end of the day, he opined that the state had all the information they say they couldn't get because they've seized all of JRI's computers. Polk explained that they didn't have them all and that there were obstacles to retrieving that data. Those obstacles, said Li, are "the law." There are constitutional issues. But, he explained, that he when HE was a prosecutor, he knew how to get evidence from computers. He's been mentioning his history as a prosecutor more and more and always with a sniff of derision towards Polk and Hughes.

Personally, I think Li is displaying increasing levels of irrational grandiosity. He's spinning out of control. Pride cometh before a fall. That's all I'm sayin.'

James Ray's Room at Angel Valley

James Ray's Briefcase

James Ray's Spiritual Warrior File

James Ray's Wallet

All information on the trial comes from news articles with provided links or live courtroom footage on TruTV's "In Session" or CNN's live feed. All quotes and paraphrased statements that are not linked to a source document are my best attempt to transcribe material from live broadcasts.

"Do you not know, Asclepius, that Egypt is an image of heaven, or, to speak more exactly, in Egypt all the operations of the powers which rule and work in heaven have been transferred to earth below? Nay, it should rather be said that the whole Kosmos dwells in this our land as in its sanctuary." - from the Hermetica